Observación (CEACR) - Adopción: 2008, Publicación: 98ª reunión CIT (2009)

The Committee notes the comments submitted by the International Trade Union Confederation (ITUC) dated 29 August 2008 concerning issues already raised by the Committee.

Article 3 of the Convention. The Committee recalls that its previous comments concerned sections 198F and 198G(1) of the Labour Code as introduced in the draft Amendment Bill (2006). In particular, the Committee had noted that section 198F provided access to the enterprise (in order to communicate with management, recruit members or perform other trade union functions) only to an authorized officer or official of a trade union which represented more than 35 per cent of the employees. The Committee had expressed its concern at practical effect that such a provision may have on the choice of workers of their trade union. The Committee notes the Government’s explanation to the effect that the issue of access to the enterprise is guaranteed by section 198 of the Labour Code which provides for “reasonable facilities for conferring” and which will not be amended. The Government adds that the purpose of new section 198F is to conclude a written collective agreement regulating the issues of access which is mandatory in certain circumstances. The Committee notes that while section 198 imposes, in general terms, an obligation on employers to provide to trade union officers reasonable facilities, section 198F expressly grants specific advantages (access to premises to meet representatives of the employer, to recruit members, to hold a meeting of members and to perform any trade union functions in terms of a collective agreement) only to an authorized officer or official of a trade union that represents more than 35 per cent of the employees.

In addition, the Committee had previously noted that section 198G(1) specified that only the members of a registered trade union, which represented more than 35 per cent of the employees of an employer that employed ten or more employees, were entitled to elect workplace union representatives. The Committee had therefore requested the Government to amend section 198G(1) so as to allow all workers to either participate as candidates or voters in the election of workplace representatives. The Committee notes the Government’s argument that the purpose of framing organizational rights is to require the employer, once the representativity threshold is met, to recognize these representatives. The Government is of the opinion that it would be inconsistent with the Convention to compel trade unions to allow non-members to vote in the election of trade union representatives.

The Committee considers that the workers’ freedom of choice may be jeopardized if the distinction between most representative and minority unions results, in law or in practice, in granting privileges such as to influence unduly the choice of organization by workers (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 98). The Committee reiterates its previous comments and requests the Government to indicate the manner in which the above provisions influence the workers’ choice of their trade union organization, as well as their right to elect their representatives.

The Committee had previously noted that section 51 of the draft Amendment Bill (amending section 232(5) of the Labour Code) provides that any strike in pursuance of a trade dispute that threatens the continuance of any essential service shall be unprotected. It further noted that under section 51 a strike that had commenced could be deemed to be unprotected retroactively, in cases where the Labour Commissioner or the Labour Court find that the strike concerned an essential service; as a consequence, workers could be dismissed or incur liability in tort not only for participating in an unprotected strike, but also for any conduct in contemplation or furtherance of an unprotected strike (new section 231 of the Labour Code introduced by section 50 of the draft Amendment Bill). The Committee had therefore requested the Government to consider amending or supplementing the law by adding a list of specific services which are considered to be essential – i.e. services, the interruption of which might endanger the life, personal safety or health of the whole or part of the population – or, in the alternative, to amend section 232(5) so that a strike becomes unprotected only if it continues after the Labour Court has decided that it concerns an essential service. The Committee notes that the Government refers to legislation which lists those services deemed to be essential. Noting, however, that it has not been attached, the Committee requests the Government to transmit a copy of the legislation setting out essential services in its next report.

Finally, the Committee recalls that its previous comments concerned the Public Services Act, 2005. It notes that according to the Government, the Committee’s comments on this law have been brought to the attention of the National Advisory Committee on Labour (NACOLA), and that NACOLA had in turn requested that these matters be referred to the Ministry of Public Service. Noting this information, the Committee expresses the hope that the Government will soon be in a position to provide full information on the measures taken:

–      to amend section 19 of the Public Services Act (2005) so as to ensure that the prohibition of the right to strike in the public service is limited to public servants exercising authority in the name of the State;

–      to establish compensatory guarantees, such as arbitration machinery for those workers who may be deprived of the right to strike; and

–      to ensure that public officers’ associations established under the Public Services Act are guaranteed the right to establish federations and confederations and affiliate with international organizations.